Peer Review in Medical Malpractice Cases Including Expert Testimony

Expert Testimony and the Merit of Patient Claims

When a patient believes they may have been the victim of medical malpractice, they are confronted with immense scrutiny from a legal landscape that often views these claims with skepticism. The 'burden of proof' (responsibility to prove malpractice occurred) falls on the plaintiff's shoulders, and the defendant physician will be eager to prove them wrong. Physicians are in a far better place to make an argument for or against a malpractice allegation. They are learned in the exact field of medicine in question and likely have the backing of colleagues when they need a further professional opinion to bolster their claim.

The Bias Against Plaintiffs

The plaintiff does not benefit from having a reputation or contacts in the field of medicine relevant to their claim. They are already at a disadvantage at the outset because of the skepticism toward victims who bring medical malpractice claims. The waves of tort reform have ever been wary of taking measures against the greedy or litigious plaintiff who attempts to capitalize upon an incident in hopes of collecting substantial damages. Confronted with this stigma and the obstacle of securing an attorney who will be wholly devoted to investigating and prosecuting their case, there is one element so crucial to the success of the plaintiff in this labyrinthine legal process: expert testimony.

Validation in the form of solid expert testimony is the difference between a prevailing plaintiff and a plaintiff whose claim is quickly dismissed. Because patients are not privy as to the specifics and intricacies of medicine, they are not qualified to determine malpractice actually took place. They may merely allege it. Once it has been alleged, many states require that the claim is reviewed by an independent expert in the medical field who may make an intelligent determination of whether or not malpractice actually took place. This serves to underline the merit of a claim. Some states formalize this process by requiring an Affidavit or certificate of merit when a claim is filed, while in other states it is more of a de facto requirement in order for a claim to be taken seriously.

Expert Testimony and the Standard of Care

Expert testimony may be supplied during depositions and on the stand during trial, assuming a claim advances to trial. There are agencies specifically devoted to linking plaintiff/plaintiff attorneys with expert witness in relevant medical fields. These experts do not come cheap. A case review and other associated expenses, such as hourly fees during depositions, can constitute a large chunk of the costs associated with litigating a medical malpractice claim. The disposition, availability, likability, and reputation of the expert are all taken into account when the plaintiff attorney ‘shops' for expert witnesses, in part because these things will matter if the expert takes the stand.

How an expert witness determines whether or not malpractice took place is actually quite simple. In every given medical field, there is a “standard of care.” It is the level of care owed to the patient by the healthcare provider, no more and no less care is expected to render. An expert will evaluate whether the provider in question ‘deviated' the standard of care, also known as the “duty of care.” If a physician renders flawless medical care in keeping with the standard of their field, no different than the care any other sensible physician would have rendered, and the care still results in an unfavorable outcome, the physician is not liable. It is up to the expert witness to determine whether or not the care rendered was adequate and in accordance with the standard of care. If there is a notable failing on the physician's part - perhaps they fail to run a common test on an injury - the patient sustains harm as a result of their oversight, an expert witness may well testify that the physician deviated from the standard of care and thereby are liable for malpractice.

Peer Review Committees

Expert testimony, critical to medical malpractice lawsuits, is distinct from the concept of ‘peer review,' although they are correlated. Peer review, generally speaking, is a process in which professionals within a given field will review and evaluate one another's work, noting opportunities for improvement. If an unexpected or negative result occurs in the course of treatment, a patient may present their malpractice claim to a peer-review committee. The peer review committee will then make a determination as to whether or not the physician in question acted in accordance with the standard. Peer review proceedings are statutorily protected and cannot be subpoenaed (ordered to be presented in court.) The contents of a proceeding are confidential. They are to be complete and candid, and this is encouraged by the fact that they are “closed” and records are confidential. This way, colleagues may offer relevant critiques without said critiques becoming damning evidence in a case against one of their own. (That sense of camaraderie between medical personnel can prove problematic. Plaintiff attorneys are sometimes confronted with challenges when they seek out experts to testify against another medical professional in their same field. In at least one medical journal, the act was likened to 'sleeping with the enemy.')

Peer Review Privilege

Disputes may arise over whether a certain document is subject to peer-review privilege, meaning it may be kept confidential and out of court proceedings. In such disputes, the judge normally must make a ruling as to whether that the privilege applies to that specific document. Hospitals may avoid these legal quagmires if they have well-written hospital by-laws pertaining to peer review procedure and the handling of related documents.

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